Prosecution of Physicians as Drug Traffickers: The United States’ Failed Protection of Legitimate Opioid Prescription Under the Controlled Substances Act and South Australia’s Alternative Regulatory Approach

The Controlled Substances Act (CSA), the principal federal legislation criminalizing drug trafficking, was traditionally employed to combat the illegal drug trade, but prescription narcotics also fall within the law’s purview. The CSA permits physicians to prescribe narcotics when acting in their professional capacity, but neither the statute nor its accompanying regulations explicitly defines these parameters. In contrast, the foreign jurisdiction of South Australia possesses textually equivalent drug trafficking legislation, yet its distinct regulatory paradigm–to codify unambiguously the boundaries of legitimate opioid prescription–effectively delineates the “safe zone” of physician prescribing practice. Unlike their South Australian counterparts, pain management physicians in the United States have therefore endured considerable governmental scrutiny. When criminal charges result, as in the recent high-profile case of U.S. v. Hurvitz, courts’ current interpretation of the CSA imperils legitimate pain management practice, criminalizing what should remain lawful physician conduct. Specifically, federal circuits inappropriately conflate the CSA ‘s “legitimate medical purpose’ and “‘usual course of professional practice” requirements, as well as nullify any meaningful good-faith defense for practitioners. Ultimately, the current standard improperly lowers the CSA’s mens rea requirement, permitting a finding of little more than medical negligence sufficient for criminal drug trafficking conviction in the United States.